West Virginia Division of Highways v. Mason

Petitioner
West Virginia Division of Highways, by counsel James C.
Stebbins and Joseph L. Jenkins, appeals the Circuit Court of
Marshall County's April 4, 2017, judgment order enjoining
petitioner from removing certain hedges and a tree.
Respondent Shirley Mason, by counsel John E. Artimez Jr.,
filed a response. Petitioner filed a reply. On appeal,
petitioner argues that the circuit court erred in (1) finding
that respondent had standing because she does not own or have
a legal interest in the property at issue, (2) finding that
petitioner waived its right to remove certain hedges and a
tree, and (3) finding that the state of the hedges and tree
at the time of the bench trial did not limit the stopping
sight distance.

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
we find that the circuit court erred with respect to finding
that respondent had a legal interest in the proceedings as a
third-party beneficiary and that petitioner waived its right
to remove the hedges and tree. For these reasons, a
memorandum decision reversing the circuit court's April
4, 2017, order is appropriate under the "limited
circumstances" requirement of Rule 21(d) of the Rules of
Appellate Procedure.

On
March 15, 2015, respondent filed a complaint for injunctive
relief seeking to enjoin petitioner from removing the hedges
and tree between her home and Kansas Ridge Road, a State
right-of-way maintained by petitioner. On August 9, 2016,
petitioner filed a motion to dismiss. Its grounds for
dismissal were (1) failure by respondent to prosecute; (2)
procedural defects including insufficient process,
insufficient service of process, and lack of subject matter
jurisdiction; and (3) lack of merit to respondent's
complaint. Thereafter, on September 19, 2016, respondent
filed a memorandum in opposition to petitioner's motion
to dismiss. The circuit court did not rule on
petitioner's motion to dismiss.

On
March 23, 2017, the circuit court held a bench trial.
According to the evidence presented at the bench trial,
respondent owned and lived in a house adjacent to Kansas
Ridge Road, a road in Marshall County, West Virginia. The
road is a State right-of-way and maintained by petitioner on
behalf of the public. According to petitioner's expert
witness, the paved portion of the road is approximately
eleven feet in width, making it effectively a one-lane road.
The speed on the road is fifty-five miles per hour, but there
is an advisory speed limit of fifteen miles per hour.
According to petitioner, people tend to travel faster than
the advisory speed limit in this area.

Petitioner's
expert also testified that the row of hedges in question is
approximately 160-170 feet long and located in a curve in a
paved portion of Kansas Ridge Road. Although it was believed
that the hedges and tree were located on respondent's
property, on the day of the bench trial it was determined
that the hedges and tree were not located on respondent's
property, but on adjoining property owned by someone other
than respondent, within the State right-of-way.

According
to the record, beginning in 2010, petitioner became aware of
several complaints that the hedges and tree limited the
stopping sight distance around the curve on Kansas Ridge
Road. In 2011, a crash occurred where the drivers cited the
hedges as contributing to the crash, and the responding
officer concurred with the drivers' observations.
Petitioner's expert witness at the bench trial explained
that "stopping sight distance is the distance that a
driver recognizes an object in the roadway and reacts to stop
that vehicle before striking the object." According to
the expert witness, on a one-lane road, the stopping sight
distance is doubled to allow each vehicle traveling towards
each other sufficient distance to stop before they hit each
other.

Prior
to the initiation of the proceedings, petitioner corresponded
and attempted to work with respondent, and the parties agreed
that petitioner would allow the hedges and tree to remain as
long as respondent kept them trimmed. Respondent failed to
keep the hedges and tree trimmed accordingly. Due to this
failure, petitioner had to trim them to ensure proper safe
stopping sight distance.

In
letters dated April 30, 2012, June 19, 2014, and September
18, 2014, petitioner notified respondent that she needed to
remove the hedges and tree. Petitioner informed respondent
that if she failed to comply, the hedges and tree may be
removed at respondent's expense. Respondent failed to
comply and her complaint to enjoin petitioner from removing
the hedges and tree followed. On the day of the bench trial,
petitioner measured the stopping sight distance near the
hedges and tree to be 200 feet. According to petitioner's
expert testimony, the safe stopping sight distance in the
area in question should be 230 feet. Drawings and a video of
the roadway and hedges and tree at issue were admitted into
evidence.

In its
judgment order, the circuit court held that (1) petitioner
waived its right to raise any procedural defects; (2)
respondent was not the owner of the real property wherein the
hedges and tree are situated, but that she was a third-party
beneficiary of the benefits provided by the hedges and tree;
(3) the hedges and tree are technically obstructions, as
defined by the West Virginia Code § 17-16-1, but that
they do not physically or visibly obstruct the public
traveling by automobile when trimmed and maintained
appropriately; (4) according to written correspondence from
petitioner to respondent, trimming the subject hedges and/or
tree was an acceptable method to allow drivers to see
oncoming traffic along the roadway; (5) petitioner waived its
right to remove the hedges and tree based upon its
correspondence with respondent; and (6) petitioner was
relieved of any duty to remove the hedges and/or tree,
although any liability for injuries or damages caused by the
growth of the hedges and/or tree would be borne by
respondent. The circuit court ordered that the hedges and
tree may remain so long as they are maintained in state and
size as presented by way of video evidence at the bench
trial. It is from the April 4, 2017, judgment order that
petitioner appeals.

The Court has previously established the following standard
of review:

In reviewing challenges to the findings and conclusions of
the circuit court made after a bench trial, a two-pronged
deferential standard of review is applied. The final order
and the ultimate disposition are reviewed under an abuse of
discretion standard, and the circuit court's underlying
factual findings are reviewed under a clearly erroneous
standard. Questions of law are subject to a de novo
review.

First,
petitioner argues that the circuit court erred in finding
that respondent had standing to enjoin petitioner from
removing the hedges and tree because she does not own or have
a legal interest in the hedges and tree. Specifically,
petitioner argues ...

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